Dramay (Migration)

The Administrative Appeals Tribunal considered an appeal by a visa applicant, born in 1998, against a decision to refuse her an Adoption (Migrant) (Class AH) Subclass 102 visa. The sponsor claimed to be the applicant's adopted father, an Australian citizen since 2012. The applicant's biological mother provided an affidavit consenting to the adoption and the applicant's relocation to Australia with the sponsor.

The primary legal issue before the Tribunal was whether the applicant met the criteria for an Adoption (Migrant) (Class AH) Subclass 102 visa, specifically concerning the requirements for adoption and the sponsor's residency status at the time of application. The Tribunal was required to determine if the evidence provided, including the sponsor's claims and the biological mother's consent, satisfied the legislative requirements for lawful adoption and parental rights under the Migration Act 1958 and associated regulations.

The Tribunal found that the applicant did not satisfy the requirements of subclause 102.211(2) of the Migration Regulations 1994. Crucially, no court adoption order had been provided, nor had certified copies of an adoption certificate been submitted. While the sponsor claimed to have lawful parental rights, the evidence did not substantiate this claim to the satisfaction of the regulations. Furthermore, the Tribunal noted that the sponsor had not resided overseas for more than 12 months at the time the application was lodged, a requirement under subclause 102.211(2)(b)(ii).

Consequently, the Tribunal affirmed the delegate's decision not to grant the visa. The applicant failed to meet the essential criteria for an Adoption (Migrant) (Class AH) Subclass 102 visa, both at the time of application and at the time of the decision, as required by regulation 102.221.